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John M. Harrington, Resp., v. Laura Bayles, Aplt.

latter by Part III, chapter X, title III, section 38 of the Revised Statutes.

It should be observed that all these decisions were promulgated subsequent to the decision in Gaskin v. Meek (42 N. Y., page 186), in which it was held that the Act of 1869 was unconstitutional because it violated the provisions of the constitution prohibiting the passage of a private or local act containing more than one subject and requiring that it be expressed in the title.

The amendment of 1874 having obviated the constitutional objection, the constitutionality of the act in question was finally sustained by the decision of the Court of Appeals in Richards v. Richards (76 N. Y. 186), in 1879.

It was held by the Monroe County Special Term in Birge v. Ainsworth (59 How. Pr., page 473), in March, 1880, that the poundage of referees in cases of sales on foreclosure was limited to $10, and was not increased by the Act of 1876 amending section 309 of the Code of Procedure, and that said amendment did not give the right to such fees or poundage, but that it was merely a limitation of the fees or poundage allowable, the right thereto being dependent upon other statutory provisions.

In the same month and year it was held in Schermerhorn v. Prouty (80 N. Y. 317), that the only effect the Act of 1876 amending section 309 of the Code of Procedure had upon the Act of 1869 was to fix a maximum of fees; that the latter was a local act and the amendment to the Code was a general law, not inconsistent therewith, except so far as it modified it in the respect hereafter mentioned, and that such act regulated the fees of the sheriff or referee on foreclosure sales in the City and County of New York, subject only to the limitation in the Act of 1876 that in no case shall they exceed $50.

It will be seen from the foregoing enactments and decisions that when section 3297 of the Code of Civil Procedure above cited went into effect, the fees allowed for services rendered on foreclosure sales were not uniform throughout the State,

John M. Harrington, Resp., v. Laura Bayles, Aplt.

but that, so far as the County of New York was concerned, such fees were measured by the Act of 1869; that besides these fees commissions not exceeding $20 might be allowed under the Revised Statutes to the officer making the sale; that section 309 of the old Code, as amended by the Act of 1876, did not give the right to the sum of $50, but only fixed the maximum of fees, percentage and services at that sum, leaving unchanged the scale of charges, up to this limit, as fixed by the various enactments, general or special, affecting the county where the real property was situated.

It might be argued with considerable plausibility that section 2 of the Act of 1869, relating to fees on foreclosure sales, has been repealed or superseded by the provisions of the Code of Civil Procedure, and stress might be laid especially upon the language of the first sentence of section 3297 that the fees of a referee are the same as those allowed to the sheriff. Such words, however, merely indicate that the fees allowed to the sheriff for selling real property pursuant to a judgment in an action when the said section went into effect were left unchanged; in other words, the various provisions for quantity or amount of sheriff's fees, whether general or local, were left unaffected. The words "the sheriff" as used in section 3297 clearly refer to the sheriff of the county where the real property ordered to be sold is situated, and not to sheriffs generally. The foregoing views are strengthened by the language of section 3308 of the Code of Civil Procedure, which is as follows: "The last section (regulating sheriff's fees), except the limitation of amount contained in subdivision eleventh thereof, does not affect any special statutory provision, remaining unrepealed after this title takes effect, relating to the fees and expenses of the Sheriff of the County of New York, or the Sheriff of the County of Kings."

The sheriff's fees on foreclosure in the County of New York, as already observed, were then regulated by section 2 of the Act of 1869, which has not been specifically repealed, but on

John M. Harrington, Resp., v. Laura Bayles, Aplt.

the contrary its provisions have been included in section 1088 of the Consolidation Act.

From what has preceded, it is clear that section 2 of the Act of 1869 must be regarded as having been engrafted upon. section 3297 of the Code of Civil Procedure and, therefore, that the former, which, as above noted, is a local act, instead of section 3307 of the Code of Civil Procedure, which relates to the fees of sheriffs generally, regulated the fees of the sheriff as well as referees on foreclosure in the County of New York when section 3297 went into effect, in 1880.

These views are further supported by the conclusion reached by the late Court of Common Pleas in the case of Lockwood v. Fox (1 Civ. Pro. 407, 61 How. Pr. Rep., 522). There, as here, the action to foreclose a mortgage was settled by the parties after advertisement and before the sale. Before the settlement the defendant tendered to the referee the sum of $10, claiming that to be the proper amount under the Act of 1869 for receiving the order of sale and printing the notices of sale. The referee declined to accept this amount, claiming that his fees were regulated by the Code of Civil Procedure, and that thereunder he was entitled to poundage on the amount paid in settlement of the judgment, and moved to tax his fees. The court at Special Term sustained the referee, but reduced his fees to $50. The defendant appealed to the General Term, which reversed the order, and held that the statute of 1869 was a local act, and therefore was unaffected by virtue of section 3308 of the Code of Civil Procedure, and that, as the referee's fees must be taxed under said act, he was entitled to only the sum of $10.

The court, in the case just quoted, among other things said: "It is apparent, from examination, that referee's fees must be taxed, under chapter 569 of the Laws of 1869, as amended by chapter 192 of the Laws of 1874, unless a change has been made by the provisions of the Code of Civil Procedure (Schermerhorn v. Prouty, 80 N. Y. 317). There was no direct repeal of the specified enactments by the repealing acts. The

John M. Harrington, Resp., v. Laura Bayles, Aplt.

statute of 1869, being a local act, is, therefore, unaffected, by virtue of section 3308, Code of Civil Procedure, to which the attention of the learned justice in the court below could not have been directed."

The principle laid down in the foregoing case was reiterated by the same court in Brady v. Kingsland (67 How. Pr., page 168), and these decisions may therefore be regarded as authorities for taxing the fees of a referee, in foreclosure cases, under the Act of 1869, as included in section 1088 of the Consolidation Act, instead of the Code of Civil Procedure, unless a change has been made by the provisions of the act "in relation to the office of the Sheriff in the City and County of New York" (Laws of 1890, chapter 523, and amendments thereof).

It cannot be fairly claimed, from a reading of the Act of 1890, that it either superseded or in any way affected the Act of 1869, or section 1088 of the Consolidation Act, which continued the portion in question. The enactment of 1890 does not provide for a direct repeal of either of such enactments, and from the view expressed by the Appellate Division of the First Department in the case of Keim v. Keim (43 App. Div., page 88) the measure of a referee's compensation in a partition suit is not to be found in the Act of 1890 The court in that case said:

"We have said that the special act in question took the Sheriff of the County of New York out of the area of the general act. The effect of this, however, was not to deprive referees appointed to sell real property in this county of any fees. Section 3307 may still be resorted to for the purpose of ascertaining the proper allowance to a referee under section 3297. The former section no longer governs as between litigants and the sheriff, but the referee's compensation may be computed thereon quite as though the percentage specified therein had been literally embodied in section 3297."

This, we think, must be regarded as overruling the conclusion reached in Schierloh v. Schierloh (22 Misc. 637) that

John M. Harrington, Resp., v. Laura Bayles, Aplt.

the fees of a referee in an action of dower, and in Hover v. Hover (25 Misc. 95), that the fees of a referee in an action to foreclose a mortgage where over $3,000 as earnest money upon the sale was received by him, but which he was compelled to return to the purchaser because the title proved unmarketable through a defect of parties to the record, are controlled by the New York County Sheriff's Law of 1890.

While the remarks above quoted were made in an action for partition, they must, by analogous reasoning, be held to apply to an action for the foreclosure of a mortgage and exclude the Act of 1890. Neither does section 3307 of the Code of Civil Procedure, as above noted, apply in foreclosure sales in New York County (Lockwood v. Fox, supra; Code of Civil Procedure, sec. 3308).

Moreover, it is apparent from a reading of the Act of 1890, that the Legislature did not intend to adapt the fees allowed by section 3297 of the Code of Civil Procedure to a salaried system in which the fees became primarily the property of the county and are returned to the sheriff in part, as an incident to his salary.

Section 17, subdivision 11 of the Act of 1890 contains the following provision: "For posting and publishing the notice of sale, selling and conveying real property in pursuance of a direction contained in a judgment, the like fees as for the same services upon the sale of real property by virtue of an execution, but where real property is sold under a judgment in an action to foreclose a mortgage, the sheriff's entire compensation shall not exceed $50."

The only fees provided for the services enumerated in the beginning of the foregoing provisions are set forth in subdivisions 8 and 9 of the same section, and they are as follows: For advertising real property, $2.50 where the amount of the judgment is less than $1,000, and $5 in all other cases (subd. 8); for making duplicate certificates of the sale of real property by virtue of an execution, 25 cents for each folio,

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